Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

The inter-relationship between emergency services and other legislation

I was wondering if you can clarify, when it gets down to the wire, which legislation takes precedence; ie a declared emergency/fire under Emergency Management Act in relation to OHS, dangerous goods and/or even road rules in the various jurisdictions?

I’m not sure from which jurisdiction it comes, but it can be answered generally. The short answer is that none of the Acts take ‘precedence’ or ‘priority’ over the others rather they all have to be interpreted and understood in context. Where one Act is ‘subject’ to the other then that will be set out in the legislation.

Take for example the NSW Road Rules and fire brigades legislation. When a fire brigade is responding to an alarm of fire, Fire and Rescue NSW are required:

… despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. (Fire Brigades Act 1989 (NSW) s 11).

This section can be traced back to the Fire Brigades Act 1884 (NSW). The reference to ‘all possible speed’ back in 1884 may or may not have had reference to such things as ‘speed limits’. Today however, one could not read the Act as authorizing fire brigades to operate without reference to the road rules in order to ‘proceed with all speed’. For example, it may be quicker to proceed now rather than wait for a sober and competent driver but that would not justify driving unlicensed, whilst intoxicated or at a speed dangerous to the public.

Today the fire brigades are subject to the traffic laws including the Australian Road Rules. But, I hear you say, rule 316 of the Australian Road Rules provides various exemptions and indeed it does. Rule 316 of the Australian Road Rules (reproduced as rule 306 in the Road Rules 2014 (NSW)) says ‘A provision of these Rules does not apply to the driver of an emergency vehicle if…’ certain circumstances are met. Rule 306 is however part of the Road Rules. The Brigades must operate to comply with the rules that include rule 306. If they meet the conditions then the other rules don’t apply but not because the provisions of the Fire Brigades Act take ‘precedence’ over the Road Rules but because the Road Rules themselves provide how the provisions are related. But both sets of rules operate together.

The Roads Act 1993 (NSW) s 5 says ‘A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road’. The officer in command at a fire or hazardous materials emergency may, on the other hand, ‘cause any street or public place in the vicinity of a fire to be closed to traffic during the fire’ (Fire Brigades Act 1989 (NSW) s 14). How do those sit together?

The answer here is not so obvious. First when interpreting a statute the general rule is that the specific (power to close a road during a fire) takes priority over the general (the right to use the road). Second rights are not unlimited, even if one has a right to pass along a public road it is subject to law such as the various statutes and rules that make up the traffic laws. So you may have a right to pass along a public road in a vehicle but the vehicle needs to be roadworthy and you need to be licensed.

What follows though is that the Fire Brigades (or the police or the SES etc) can’t just close a road because they think it’s a good idea. A member of the public has a right to pass along a road, a person who wants to stop them has to be able to point to specific authority to justify their actions in closing the road, even temporarily. This would be an example where the specific Fire Brigades Act (or the equivalent in the State Emergency and Rescue Management Act) would take precedence over the general statement in the Roads Act.

Work Health and Safety legislation also operates alongside the emergency services legislation. Just because there is a fire, a flood or a declared emergency does not mean that the emergency services, councils and others are relieved of their obligation to take steps to ‘ensure, so far as is reasonably practicable, the health and safety of’ their workers (including volunteers) (Work Health and Safety Act 2011 (NSW) s 19). What is ‘reasonably practicable’ has to take into account all the circumstances including the job people are tasked to do and whether it is in fact reasonable to do that job. But an incident to which the emergency services respond should not be their emergency, for them it’s ‘all in a day’s work’ so they have to have done their risk assessment, considered how they will approach the tasks they might face and have implemented the appropriate controls.

(Even the armed forces are not exempt from WHS laws (though the Chief of the Defence Force may exempt the ADF some activities from the provisions of the Act (Work Health and Safety Act 2011 (Cth) s 12D)). Recently the ADF was prosecuted over the death of a soldier during a live fire training exercise in preparation for deployment to Afghanistan (Comcare v Commonwealth of Australia [2015] FCA 810)).

So neither Act takes ‘precedence’ over the other but considering what is ‘reasonably practicable’ for WHS purposes has to reflect what is practicable when undertaking the various tasks that the emergency services face.

In Victoria, during a declared State of Disaster the Minister may direct a government agency from performing various functions and suspend legislation where compliance is inhibiting the response or recovery operations (Emergency Management Act1986 (Vic) s 24(2)). That is a case where the could be said that the emergency management legislation ‘takes precedence’ over the other state legislation but it’s not some general rule but an application of the particular provision.

Conclusion

My correspondent asked if I could ‘… clarify, when it gets down to the wire, which legislation takes precedence…?’ and the answer is “no, I can’t”. The rule of law would say that all the legislation has to stand and operate together, each Act is equal. How the Acts do work together is not dependent on some general principle but upon the specific wording of the Act. In the examples I’ve given above it is clear that rules such as the Australian Road Rules have been designed to remove potential conflict; the Emergency Management Act1986 (Vic) is specific in giving the Minister the power to ‘waive’ other Acts; the Work Health and Safety obligations are expected to continue to apply but their terms allow the special considerations during a hazardous event to be taken into account. The most problematic example was the interplay between the Roads Act 1993 (NSW) and the various provisions allowing emergency services to close the roads. There are rules of interpretation that would resolve that and that may be a case where we can say the emergency services legislation takes precedence over the general right to travel along a road.

But they are all specific examples and that is the way the question has to be answered. To answer ‘which legislation takes precedence; ie a declared emergency/fire under Emergency Management Act in relation to OHS, dangerous goods and/or even road rules in the various jurisdictions?’ one has to look at the specific legislation in each jurisdiction and identify the particular circumstances that are under consideration. It is not a question that can be answered in general terms.

One thought on “The inter-relationship between emergency services and other legislation”

The principle that the general rule (a right to use the road) is subject to the specific (the fire brigades may close a road) is summed up by the Latin phrase – Generalia Specialibus non Derogant:

“Where there is a general provision [the right to use a public road] which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter [the power of a fire brigade to close a road], the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.” (Goodwin v Phillips (1908) 7 CLR 1, 14 (O’Connor J) cited in D.C Pearce and R.S Geddes Statutory Interpretation in Australia (8th ed, Lexis/Nexis, 2014), 334.)